Trial Mistakes – The “Even If” Catastrophe

trial mistakes

The “even if” argument is the king of all trial mistakes. If you try enough cases or watch enough trials you’ve either seen it, done it, or both.  It goes like this:

“Members of the jury, it is absolutely clear that my client did not kill anyone.  The government simply has the wrong guy.  All the evidence points to my client’s complete innocence. However, if you find that he did kill Mr. Jones, it was clearly an act of self-defense…”

As lawyers this is one of the most common trial mistakes we make.  Somehow we think that two different versions of events is better than one.  I’m not sure where this logic comes from but maybe law school is to blame.  Somehow we believe that what would never work outside of a courtroom will work inside of it.  It is as if jurors stop being normal people once they are sworn in to hear the case (in our minds).

To show you why the “even if” argument is a bad idea let’s envision a real world scenario.  You get home and your significant other accuses you of having dinner with your ex the night before.  To persuade your spouse that this is not true you present your case as follows:

Honey, I was definitely not having dinner with my ex last night at Keenz Steakhouse .  I was not even at Keenz Steakhouse last night! I was at work, you can call my coworkers.  They will confirm it. But even if I was at Keenz Steakhouse last night having dinner, my ex was not there!  It was a business dinner.

It sounds ridiculous, doesn’t it? That’s because it is. And it sounds just as ridiculous to you as it does to your jury. As Herbert Stern put it in his Trying Cases To Win series, the “even if” argument does not strengthen your presentation, it weakens it.  Here is why:

The Jury Thinks You Know What Happened, Until You Tell It You Don’t

If you are any good the jury thinks you know what really happened that led up to the trial.  All of the persuasive devices we use are aimed at getting this to happen. Regardless of how many times the judge instructs the jury that “what the attorneys say is not evidence” the jury will continue to believe that what we say is evidence.

The easiest way for the jury to realize that you do not really know what happened is to present alternative theories.  This is because in the real world only one thing can be true at any given time. Your client either killed him or he didn’t.  He either was present or he was not.  The jurors are real people, living in the real world, trying to make the right decision.  They need to be able to trust you and your version of events.

Alternative Theories Make For Bad Storytelling

A big part of what we do as trial lawyers is storytelling.  Getting the jury immersed in your story triggers evolutionary mechanisms that help with the process of persuasion. A captivating story can cause the suspension of disbelief, trigger mirror neurons, and evoke sympathy.  None of which is possible with a bad story.  And just like a person cannot physically be in two places at once, a person cannot be inside two stories at once.  The “even if” argument is a fork in the road that splits your story into two.  The jury will not find itself immersed in both stories, it will find itself immersed in neither one.

Alternative Theories Take Up Valuable Time

Your jury’s attention window is very short.  No matter how entertaining you may be there is a limited amount of time that the jury will listen for.  Presenting alternative theories requires you to split this valuable time.  There is no way around this.

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